ELR Citation: ELR 21328
No(s). s. 92-7494 et al (3d Cir. Aug 12, 1993)

The court holds that in a Federal Water Pollution Control Act (FWPCA) citizen suit alleging national pollutant discharge elimination system (NPDES) permit violations, a district court has subject matter jurisdiction only over violations of permit parameters that the plaintiff alleges to be continuous or intermittent at the time of the complaint. First, the court addresses the appropriate standard for determining the extent of a court's subject matter jurisdiction over cases in which a plaintiff alleges a series of permit violations involving multiple parameters. The court holds that a "modified by-parameter" standard is appropriate. Under this standard, a plaintiff can establish at trial that violations are continuous or intermittent by proving a likelihood of recurring violations of the same parameter, or by proving a likelihood that the same inadequately corrected source of trouble will cause recurring violations of one or more different parameters. A permit-based approach would allow citizens who allege an ongoing violation of a single parameter to litigate past violations of different and unrelated parameters, and allowing essentially wholly past and unrelated parameter violations to be brought within the purview of citizen suits would violate the FWPCA, under which only the U.S. Environmental Protection Agency may bring enforcement action for wholly past violations. The court holds that the district court did not err by relying solely on post-complaint violations to determine that corresponding pre-complaint violations were continuous or intermittent, because proof of one or more post-complaint violations is itself conclusive. The court holds that claims for penalties are not moot because an intervening NPDES permit eliminates any reasonable possibility that the permit holder will continue to violate specified parameters. The language of FWPCA §309(d) supports this holding and the policies underlying the existence of citizen suits compel the same result. The court holds that the district court did not abuse its discretion by reopening the case for limited additional testimony as to the plaintiff environmental groups' injury-in-fact, because the court reasonably could have found that there was a legitimate misunderstanding concerning whether the permit holder would be allowed to challenge the environmental groups' proof of injury-in-fact. The court also holds that the groups have standing to bring the action, because they have adequately shown that their injuries are fairly traceable to the permit holder's violations.

The court holds that the district court could properly enjoin the permit holder even though it transferred ownership of the facility that was subject to the permits shortly after the suit was filed. The environmental groups demonstrated irreparable injury arising from the permit holder's unlawful conduct by establishing a decade-long history of substantial permit noncompliance at the facility. The district court properly considered the entire record and reasonably found that the group had established irreparable injury. The court holds, however, that because the injunction proscribes violations of parameters over which the district court did not have jurisdiction, due to the wholly precomplaint nature of those violations, the district court must narrow the scope of the injunction to order compliance with only those parameters that were being continuously or intermittently violated. Finally, the court directs the district court to calculate the penalty for violations of the permits' average daily discharge limit based only on the number of days within the month that the facility operated. It is only fair and logical to assess penalties for a violation of the limit based on the number of days the facility was in operation; otherwise the penalty amount would be disproportionate to the environmental harm.

Counsel for Appellant/Cross-Appellee
Richard D. Allen, R. Judson Scaggs Jr.
Morris, Nichols, Arsht & Tunnel
1201 N. Market St., P.O. Box 1347, Wilmington DE 19899
(302) 658-9200

Mitchell S. Bernard
Natural Resources Defense Council
40 W. 20th St., New York NY 10111
(212) 727-2700

Counsel for Appellees/Cross-Appellants
C. Scott Reese
Cooch & Taylor
Marine Midland Plaza
824 Market St. Mall, P.O. Box 1680, Wilmington DE 19899
(302) 652-3641

Before Scirica and Garth, JJ.